XING LING MEI v. New York City Transit Authority, appellant. (2005)

In an action, inter alia, to recover damages for emotional distress, the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated October 31, 2003, as denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant New York City Transit Authority.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the cause of action to recover damages for emotional distress insofar as asserted against the defendant New York City Transit Authority and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The cause of action to recover damages for emotional distress insofar as asserted against the appellant should have been dismissed, since the plaintiff Xing Ling Mei was not within the zone of danger and had no contemporaneous observation of her son's death (see Bovsun v. Sanperi, 61 N.Y.2d 219, 223-224, 473 N.Y.S.2d 357, 461 N.E.2d 843;  Gonzalez v. New York City Hous. Auth., 181 A.D.2d 440, 580 N.Y.S.2d 760).

Issues of fact precluded the granting of summary judgment with respect to the remaining causes of action (see e.g. Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 623 N.Y.S.2d 838, 647 N.E.2d 1346).